Retrial
of a criminal defendant is barred by double jeopardy where the trial judge,
after seating all alternates, removed a juror for bias over the objections of
both parties, the Fourth District Court of Appeal ruled yesterday.

The
judge’s action did not meet the test of “legal necessity” adopted by the
Supreme Court in People v. Hernandez
(2003) 30 Cal.4th 1 and Curry v. Superior
Court (1970) 2 Cal.3d 707, Justice Patricia Benke wrote for the
court’s Div. One.

“While
the court’s determination of bias might support removal during voir dire, once
the alternates were exhausted during trial, the trial court’s unilateral determination
of bias is not a proper basis for removing a juror and a trial judge acts at
his or her peril in doing so,” Benke said, adding:

“If
the defendant wishes to proceed with the biased juror, he or she is entitled to
do so.”

San
Diego Superior Court Judge Frank A. Brown had already seated both of the
alternate jurors during Amar Naim Evans’ robbery trial when he received a note
during deliberations from one juror questioning the impartiality of another.
Brown spoke with the challenged juror, who admitted she had been a suspect in a
similar case 35 years earlier and had forgotten to mention it during voir dire.

The
juror contended she could still be impartial, but Brown excused her on his own
motion despite objections from both the prosecutors and Evans. When neither
side would stipulate to continuing with an 11-member jury, he declared a
mistrial.

Evans
sought a writ of mandate after his motion to dismiss was denied. The appellate
court granted the writ, issued a stay, and yesterday directed that the charges
be dismissed.

Benke
pointed out that in Curry the
Supreme Court held that a “mere error of law or procedure...does not constitute
legal necessity.”

The
court in Curry explained:

“[E]ven
when a palpably prejudicial error has been committed a defendant may have valid
personal reasons to prefer going ahead with the trial rather than beginning the
entire process anew, such as a desire to minimize the embarrassment, expense,
and anxiety....These considerations are peculiarly within the knowledge of the defendant,
not the judge, and the latter must avoid depriving the defendant of his
constitutionally protected freedom of choice.”

Benke
noted that the Supreme Court had barred retrial under similar circumstances in Larios v. Superior Court (1979) 24 Cal.3d
324. In that case, the justice observed, a juror who had conducted outside
research about the case was excused after the alternates had been exhausted.

While
a juror’s inability to perform his or her duties is a factual question to be
decided by the trial judge, Benke said, in this case “no juror suffered from an
inability to serve and there was no showing that the jury was unable to agree.”

She
rejected the prosecution’s attempt to distinguish Larios on the basis that the bias there favored the
prosecution, while in Evans’ case it favored the defendant.

“This
is a distinction without a difference under either federal or California
law,” the justice declared, pointing out that California
double jeopardy protections are stronger than those provided by the U.S.
Constitution

Benke
wrote:

“The
mistrial here, because it was based on a bias in favor of the defendant, helped
the prosecution, not the defense. Thus, even under the more limited
double-jeopardy rules available under federal law, petitioner, unlike the
petitioner in Larios, would be
entitled to an order dismissing the complaint.”